Aug 19 2008
Dear Ms. Laurie:
I understand that you have had a lawyer send out a cease and desist and takedown letter to a romance blogger based on two things. First, you argue that the comments that the blogger excerpted from your own website (which you subsequently deleted but Google preserved for all time) are somehow unacceptable infringement.
In this posting you excerpt from a website that is copyright protected, thus violating federal copyright law. There is and has been an existing disclaimer on Ms. Laurie’s website, (www.victorialaurie.com), which states that; “No part of this website may be directly copied or duplicated and all of the content herein is copyright protected.” These quotes you have posted to your blog should be immediately removed or Ms. Laurie will be forced to take appropriate action.
I’m sure your lawyer explained to you the concept of “fair use” and you simply choose to ignore such advice and told the lawyer to go ahead and make the accusation of infringement. Fair use, as your lawyer must know since she references federal copyright law, allows for copyrighted content to be used without permission according to Section 107 of the U.S. Copyright Act. Acceptable uses are “criticism, comment, news reporting, teaching, scholarship, and research.” NovelReads is a blogger who used your own words for criticism, comment and possibly even teaching. Further NovelReads’ use of your words does not impair the marketability of your original work. I am sure that you could find a publisher for your work, perhaps in a volume of “The Dummies Guide to Internet Behavior By Authors: What Not to Do.”
Second, your attorney asserted
In addition to the above violation of law, on Tuesday, August 12, you contacted the voice mail of someone you thought to be Ms. Laurie’s editor at Penguin Group USA and left a voice mail claiming that you were “deeply disturbed” by a blog posting and requesting a comment (a copy of which we have in our possession). Please consider this letter a cease and desist letter. While you are free to express your opinion under the First Amendment, taking impulsive and inappropriate action with the attempt to interfere with a contractual relationship is unacceptable…
I’m surprised that you find it objectionable for a reader to call your editor to ask whether it is in fact true that your editor condones you harassing and vilifying readers for your own entertainment and engaging in possibly tortious and defamatory actions and that same editor encourages other authors to do the same. I think I’ll call your editor myself to ask since that self same reader did not get a response yet to see if the “editor thinks this concept of mine is hilarious and she’s going to suggest the idea to her other authors who are fed up with being targets for the mentally deranged.” I’m not sure what violation impulsivity falls under but I do recognize the claim that you are making in regards to the existing contractual relationship.
There are two such business torts that exist: Tortious interference with an existing business relationship and tortious interference with prospective business relationships. The problem here is proving these claims because I have yet to see where a single phone call to inform an editor of conduct that the editor already knows of is tortious interference in any way. Further, I am pretty sure we customers can call and complain about a company’s product without being accused of tortious misconduct. Of course, your lawyer is free to write me and tell me where I am wrong.
Your lawyer also knows that by writing threatening letters that do not have a reasonable basis in law or fact can open her up to an ethics complaint. For example, according to the Texas Center for Legal Ethics and Professionalism, a lawyer promises that she ” will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.”
I find it odd that I have engaged in the same objectionable conduct and I have not received a letter from your or your lawyer. Is is because you don’t think I would take you seriously? Or is because someone told you I know what the law is and I am not afraid to use it to defend myself? Instead, you harass someone else in hopes that the person will be so intimidated and that you won’t be found out?
In any event, thanks for having the letter sent. It provided me with a great source of amusement. Unfortunately, the blogger in question was not amused. No, she was scared. I completely understand if the blogger chooses to take content down or change existing content because she doesn’t want to be harassed by you and your lawyer. That was exactly the point of the letter, though, wasnt it? To harass and strike fear into the heart of the blogger?
I do wonder about your psychic abilities. They just don’t seem to be steering you in the right direction these days.